by Chief Judge Patti B. Saris

Voice of the Judiciary

Sentencing reform is now at the center of debate in Massachusetts. A reconstituted Massachusetts Sentencing Commission is reviewing state sentencing guidelines. Chief Justice Gants of the Supreme Judicial Court has called for the elimination of mandatory minimum sentences for drug crimes. The debate is a welcome development. I come to this judgment from my experience not only as a trial judge of thirty years in the Commonwealth and in the Federal Courts, but also as the Chair of the United States Sentencing Commission. I write on my judicial perspective on mandatory minimum sentences with the hope that the federal experience with mandatory minimums and guidelines will be helpful in the state’s reform discussion.

In 2011, the United States Sentencing Commission, an independent, bipartisan agency, unanimously reported to Congress that current mandatory minimum penalties, particularly for drug offenses, contribute to growing prison populations and can lead to unfair results. In the past several years, the Commission has prioritized reducing incarceration costs and prison overcapacity. Last year, the Commission reduced drug penalties and made that change retroactive, making up to 40,000 incarcerated offenders eligible for early release by an average 25 months.

The Commission’s 2011 report to Congress on mandatory minimum penalties determined that some mandatory minimum provisions apply too broadly, are set too high, or both. The Commission found that their use, particularly in the drug context, contributed significantly to over-incarceration. The Federal Bureau of Prisons is more than 38 percent over-capacity. Federal prisons and detention pending trial cost well over $6 billion a year and account for about a quarter of the overall Department of Justice budget. This means fewer resources for law enforcement and other key public safety programs. The number of offenders in federal prison convicted of an offense carrying a mandatory minimum penalty increased from 40,104 offenders in 1995 to 111,545 in 2010, an increase of 178.1 percent. Drug offenders currently make up 51 percent of those in federal prison and comprise the majority of those offenders subject to mandatory minimum penalties.

The Commission found that certain severe mandatory minimum sentences lead to disparate charging decisions by prosecutors and to vastly different sentences for similarly situated offenders. These differences were particularly acute with respect to filing notices under section 851 of title 21 of the United States Code for drug offenders with prior felony drug convictions, which generally doubles the applicable mandatory minimum sentence. In some districts, filing was routine. In others, it was more selective, and in one district it was almost never filed at all.

We further found that, in the drug context, mandatory minimum penalties often resulted in severe sentences for lower-level offenders, rather than just for the high-level drug offenders who it appears Congress intended to target. For example, a courier may be carrying a large quantity of drugs, but may be a lower-level member of a drug organization. The Commission found that 23 percent of all drug offenders were couriers, and nearly half of these were charged with offenses carrying mandatory minimum sentences. The category of drug offenders most often subject to mandatory minimum penalties at the time of sentencing were street-level dealers, who were many steps below high-level suppliers and leaders of drug organizations.

In addition, Black offenders were much less likely to get “safety valve” relief from mandatory minimum penalties than other offenders and therefore were more likely to remain subject to those mandatory minimum penalties. Only about 14.4 percent of Black offenders qualified for safety valve relief compared to 46.3 percent of Hispanic offenders and 39.5 percent of White offenders. This difference is largely attributable to the criminal history of Black drug offenders. About three quarters of Black drug offenders convicted of a drug offense carrying a mandatory minimum penalty had a criminal history score of more than one point under the sentencing guidelines, which disqualified them from application of the safety valve.

Significantly, the Commission has found that, in at least some circumstances, modestly reducing drug sentences did not make it more likely that people would commit new crimes or less likely that they would plead guilty or cooperate with authorities. Crack cocaine offenders we studied, who were released in 2008 after having their sentences reduced by more than two years because of an amendment to the sentencing guidelines, had a 30.4 percent recidivism rate. The group of similarly situated offenders who had served their full sentences had a 32.6 percent recidivism rate.

Moreover, the overall rates at which these defendants pleaded guilty remained relatively stable after crack cocaine penalties were reduced. In the fiscal year before the 2008 amendment took effect, the plea rate was 93.1 percent, and in the two consecutive fiscal years following effect, the plea rate was 95.2 percent and 94.0 percent. Similarly, in the fiscal year before the amendment took effect, the overall rates at which crack cocaine defendants received substantial assistance departures for their cooperation with law enforcement was 27.8 percent, and in the two consecutive fiscal years afterward, the substantial assistance departure rate was 25.3 and 25.6. Thus, while some prosecutors have worried that reducing drug penalties would affect the incentive to cooperate, this reduction did not appear to have that result.

While there was a spectrum of views among the Commissioners as to whether mandatory minimums are a good idea, the Commission has unanimously recommended statutory changes to reduce and limit mandatory minimum penalties. These recommendations include the following:

Congress should reduce the length of current mandatory minimum penalties for drug trafficking.

Congress is now considering bipartisan legislation consistent with these recommendations. Many states, like California, Texas, South Carolina and others, have recently reconsidered their sentencing policies and been able to reduce prison populations and save money without increasing crime.

It is important to note that while the Commission has recommended reducing the mandatory minimum penalties, it continues to believe that guidelines can reduce unwarranted disparity among judges and increase fairness in sentencing. The federal courts have advisory guidelines that provide a strong anchoring effect in most federal cases. In a 2013 survey of federal district judges, we learned that more than three-quarters of judges prefer advisory guidelines to any other sentencing system — including one with no guidelines.

As a veteran of the Superior Court, I think that the federal experience is very relevant to the current Massachusetts debate on issues of over-incarceration and sentencing proportionality. I believe that the work of the United States Sentencing Commission can help inform that discussion and the urgent need for reform. Fairness and sound public policy are powerful arguments, indeed.

United States District Judge Patti B. Saris is the Chair of the United States Sentencing Commission and the Chief Judge of the United States District Court for the District of Massachusetts. Judge Saris was an Associate Justice of the Massachusetts Superior Court before her appointment to the United States District Court.